California Harassment Prevention Training Laws
California Harassment Prevention
Summary:
All California employers, which employ 5 or more employees, must
provide sexual harassment training to all employees every two years
Recent changes:
SB 1343, which was approved in 2018, requires any
employer with at least 5 employees to provide the sexual harassment training to all
employees (previously training was only required for employers with >50 employees
and for supervisors). SB 778, which was approved on August 30, 2019, and SB 530,
which was approved on October 10, 2019, clarified/amended certain deadlines.
Relevant California laws:
AB 1825 which added Section 12950.1 to the California
Government Code (Fair Employment and Housing Act) and relevant amendments to the
Code (AB 2053, SB 396, SB 1343, SB 778, SB 530)1 as well as 2 CCR § 11024 and SB
130011.
What companies must provide training:
All California employers which employ 5 or more
employees2.
Who must be trained:
All employees must be trained3.
Supervisory4 employees must be trained for at least 2 hours and
non-supervisory employees must be trained for at least 1 hour.
How frequently must employees be trained:
All employees must be trained once every 2 years
When must employees be trained:
Nonsupervisory employees and supervisory employees need
to be trained within 6 months of hire/assumption of supervisory role5.
Temporary workers6 must be trained within 30 days of initial hire or
within 100 hours worked, whichever comes first (effective January 1, 2021). All
employees must be trained by January 1st, 202110.
Minimum training requirements:
- All employees must be provided with classroom7 or other
effective interactive training and education regarding sexual harassment and
the prevention and correction of sexual harassment and remedies available to
victims of sexual harassment
- The training and education shall also include practical examples aimed at
instructing supervisors in the prevention of harassment, discrimination, and
retaliation, and shall be presented by trainers or educators with knowledge
and expertise in the prevention of harassment, discrimination, and
retaliation
- Training must be at least two hours for supervisors and at least one hour
for nonsupervisory employees
- The department shall provide a method for employees who have completed the
training to save electronically and print a certificate of completion
- The training must include, but is not limited to:
- The definition of sexual harassment provided by FEHA and the Civil Rights
act of 1964
- FEHA and Title VII statutory provisions and case law principles concerning
the prohibition against and the prevention of unlawful harassment,
discrimination and retaliation in employment.
- The types of conduct that constitute sexual harassment
- Remedies available for sexual harassment victims
- Strategies to prevent sexual harassment
- Supervisors’ obligations to report sexual harassment, discrimination, and
retaliation that they are aware of
- Practical examples that illustrate sexual harassment, discrimination, and
retaliation in the workplace
- The limited confidentiality of the complaint process
- Resources available to sexual harassment victims and who they should talk to
- Steps to take to remediate harassing behavior
- Training on what to do when the harasser is the supervisor
- The essential elements of an anti-harassment policy
- A review of the definition of “abusive conduct” and its negative effects on
the victim and the workplace. The detrimental consequences, such as
productivity and morale, of abusive conduct on an employer. The elements of
abusive conduct. Examples of abusive conduct. That a single act does not
constitute abusive conduct, unless especially egregious
- Protection against retaliation in employment for filing a complaint or
participating in investigations relating to sexual harassment in the
workplace
- “An employer may also provide bystander intervention
training8”
- E-Learning must be:
- Be individualized, interactive, created by a trainer and an
instructional designer
- Provide a link or directions on how to contact a trainer who shall be
available to answer questions
- Include questions that assess learning, skill-building activities that
assess the supervisor's application and understanding of content
learned, and numerous hypothetical scenarios about harassment, each with
one or more discussion questions so that supervisors remain engaged in
the training. Examples include pre- or post-training quizzes or tests,
small group discussion questions, discussion questions that accompany
hypothetical fact scenarios, use of brief scenarios discussed in small
groups or by the entire group, or any other learning activity geared
towards ensuring interactive participation as well as the ability to
apply what is learned to the supervisor's work environment
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- AB
1825, which was approved on September 29, 2004, added Section 12950.1
to the California Government Code laying out the requirement for sexual
harassment training; AB
2053, which was approved on September 9, 2014, added prevention of
abusive conduct to sexual harassment training requirements; SB
396, which was approved on October 15, 2017, added gender identity,
gender expression, and sexual orientation to sexual harassment training
requirements; SB
1343, was approved on September 30, 2018, extended harassment
training requirements to all employees, not just supervisors, and reducing
employee number thresholds to 5 employees, including temporary or seasonal
employees; SB 778, which was approved August 30, 2019, extended the employee
training deadline and resolved confusion about retraining requirements for
certain employees who already received training in 2018 or 2019. SB 530,
which was approved October 10, 2019, extended the effective date for
temporary workers’ training requirements as well as made some specific
provisions for employers that employ workers pursuant to a multiemployer
collective bargaining agreement in the construction industry (more
information on the impact of SB 778 and SB 530 can be found HERE).
Section 12950.1 of the California Government Code is the Fair Employment and
Housing Act (FEHA),Title 2, Division 3, Part 2.8. The Department of Fair
Employment and Housing (DFEH) is the state agency charged with enforcing and
interpreting California's civil rights law and has issued regulations
governing the sexual harassment trainings contained within 2
CCR § 11024. The DFEH has published a Sexual
Harassment Frequently Asked Questions.
- "Employees" includes temporary or seasonal workers, contractors,
and interns. There is no requirement that these employees be employed at the
same time during the year.
- All employees residing or working in California must be trained in
accordance with these requirements. It is not entirely clear to Kantola if
an individual trained by another California employery requires to be
retrained when starting with a new employer (piggy-backing)
- "Supervisory employee" means any individual having the
authority, in the interest of the employer, to hire, transfer, suspend, lay
off, recall, promote, discharge, assign, reward, or discipline other
employees, or the responsibility to direct them, or to adjust their
grievances, or effectively to recommend that action, if, in connection with
the foregoing, the exercise of that authority is not of a merely routine or
clerical nature, but requires the use of independent judgment.
- A non-supervisory employee promoted to a supervisory role must be
retrained in accordance to supervisory training requirements within 6 months
of assuming the supervisory role.
- Temporary workers includes temporary, migrant or seasonal (or working less
than 6 months, i.e. interns) workers
- In-person/classroom training must be administered by a “Qualified Trainer”
as outlined in California
Code Regs. tit. 2, § 11024(a)(10)
which includes the following requirements: A trainer also shall be one or
more of the following: (1) “Attorneys” admitted for two or more years to the
bar of any state in the United States and whose practice includes employment
law under the Fair Employment and Housing Act and/or Title VII of the
federal Civil Rights Act of 1964, or “Human resource professionals,”
“harassment prevention consultants,” or peer-to-peer trainers with a minimum
of two years of practical experience in one or more of the following: a)
designing or conducting discrimination, retaliation and harassment
prevention training; b) responding to harassment complaints or other
discrimination complaints; c) conducting investigations of harassment
complaints; or d) advising employers or employees regarding discrimination,
retaliation and harassment prevention, or “Professors or instructors” in law
schools, colleges or universities who have either 20 instruction hours or
two or more years of experience in a law school, college or university
teaching about employment law under the Fair Employment and Housing Act
and/or Title VII of the federal Civil Rights Act of 1964.
- Section 12950.2
of the California Government Code states that “An employer may also provide
bystander intervention training that includes information and practical
guidance on how to enable bystanders to recognize potentially problematic
behaviors and to motivate bystanders to take action when they observe
problematic behaviors. The training and education may include exercises to
provide bystanders with the skills and confidence to intervene as
appropriate and to provide bystanders with resources they can call upon that
support their intervention.
- The
Property Service Workers Protection Act imposes additional in-person
training requirements for employers that provide janitorial services
- SB 778, which was approved August 30, 2019, extended the employee training
deadline and resolved confusion about retraining requirements for certain
employees who already received training in 2018 or 2019 (more information on
the impact of SB 778 can be found HERE)
-
The California legislature, through SB 1300, made clear that California law
does not preclude a harassment complaint based on a single alleged incident
of misconduct from going to trial, and they clarified that a single stray
comment can be evidence of a hostile work environment. In particular, the
California legislature rejected the case of Brooks v. City of San Mateo
(2000) 229 F.3d 917 as a test of whether a single incident of harassing
conduct is sufficiently severe or pervasive to constitute hostile work
environment harassment. At the same time, however, the legislature did not
eliminate the “severe or pervasive” standard in California. For this reason,
our courses make clear that in most cases isolated comments or incidents are
not going to lead to liability for workplace harassment, which remains true
after SB 1300. We have found that most of our customers want their employees
to understand this, while also understanding that employers must take
effective steps to stop sexually inappropriate conduct in the workplace.
The above should not be viewed as legal advice and
we always recommend speaking to your legal counsel where you have specific legal
questions.
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